The typical contract for the sale of a single-family home provides that if there is a casualty between the time of the contract and the time of closing, depending on the severity of the damage, it is either the seller’s responsibility to repair the damage or, if the damage is severe and the damage cannot be promptly repaired, the purchaser may cancel the contract. But suppose the casualty consists of a tree falling far from the house? Is the seller responsible for removing it?
On the eve of closing recently, the Purchaser’s realtor reported being told by the gardener that a tree had fallen in a recent storm in a wooded area and was left supported at a 45-degree angle by another tree. No damage was caused, and the gardener offered to clear the tree for $2,500. The selling price was over $1 Million, so a last-minute cost of $2,500 did not seem extraordinary. But was it the seller’s responsibility?
The first question to be answered was whether the tree was even on the seller’s property. The property in question bordered on property of the local municipality, so if it wasn’t on the seller’s property then it wouldn’t be the seller’s responsibility to clear it. The survey did not clearly indicate whether the tree was on the seller’s side of the boundary or the town’s side, so it was of no help. A visit to the site with a tape measure might have been necessary.
The next question was whether clearing such a tree in the woods was part of the seller’s normal maintenance. The contract of sale obligated the seller to continue to maintain the property as it had been in the past, so if the tree would normally have been left to decay in the wooded portion of the property, then it would not have been the seller’s responsibility to remove it. A conversation with the seller, however, revealed that he claimed the tree had been down (resting on another tree) for years – well before the contract had been signed. If that were the case, then the “as is” clause in the contract would relieve the seller of any obligation to remove the tree. But, the seller was elderly, and his claim that the tree had been there for a long time was met with skepticism, especially since the gardener had been insistent that it fell in a recent storm.
Typically, when a house is being listed for sale by a realtor, the realtor takes pictures of the interior and exterior. So, we requested that the realtor review those photos and see if the tree was shown in any of the photos, and if indeed it had fallen as of the time the photos were taken, and before the house was shown to the buyers. Lo and behold! There was a photo that clearly showed the tree in question, and it was in the exact same position – resting at a 45-degree angle on another tree, well before the contract was entered into. Our elderly client was absolutely correct, and the gardener (who stood to make $2,500 for removing the tree) was mistaken, if not outright lying about the timing of the tree’s demise.
This little story, though perhaps not as philosophical as the story of the tree that fell in the woods with no one there to hear it, illustrates several points about residential real estate closings:
Even an otherwise routine real estate closing can have its challenges,
It is helpful to have counsel who not only know the law and can interpret the contract, but also have experience and common sense, and
As in the Garden of Eve, one should look upon the gardener’s assurances with skepticism.